ACA: Title II Docket Should Be Closed

Now that the FCC has voted to adopt network neutrality regs on Internet access services, the American Cable Association wants it to close the book on FCC Chairman Julius Genachowski's initial Third Way proposal to reclassify broadband access as a Title II service.

Genachowski, himself a Harvard lawyer, said Tuesday he is confident that the new rules are legally supportable under the Title I approach, which also creates a path to some Title II and other regs through the FCC's general authority over promoting broadband deployment and insuring competition, the commission majority argues.

ACA President Matt Polka said he appreciated that the Chairman reconsidered Title II, and was generally supportive of the order voted on Tuesday. "[The commission] has advanced a template that appears to give providers appropriate pricing and network management flexibility under a light touch framework that attempts to balance the interests of consumers, innovators and access providers," he said.

But Polka also said the FCC needed to shutter the Title II initiative. "At some point soon, ACA encourages the FCC to close the Title II docket to reassure stakeholders that such a heavy-handed approach is no longer under serious consideration," he said.

Senior FCC officials have said the docket on reclassifying under Title II, which would not require a vote but simply a declaratory ruling the FCC has argued (ACA disagrees), remains open. That has given some network neutrality fans, including Democratic Commissioner Michael Copps, some hope that the commission could still go that route, particularly if it runs into legal trouble with its Title I defense.

While industry has been mildly supportive generally of the new regs, at least as an alternative to Title II, they will still likely be taken to court, both Democratic and Republican FCC commissioners have acknowledged.

Like almost all other commenters, Polka said ACA will need to read the fine print--the order has yet to be released. "While generally optimistic ahead of the release of the text of the rules, ACA will need to review carefully the FCC's order to ensure that the regulations are calibrated such that they do not unduly constrain what are otherwise perfectly lawful business practices designed to maximize the broadband experience for each consumer, including pricing plans matched to actual usage and download speed requirements."